ROBERT E. WIESENBERG, Plaintiff-Appellant,
UNIVERSITY OF HAWAII; JOHN DOES; JANE DOES; DOE CORPORATIONS; DOE ENTITIES; DOE GOVERNMENTAL UNITS/ENTITIES, Defendant-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 13-1-2248-08)
Foley, Presiding Judge, Fujise and Ginoza, JJ.
ORDER GRANTING NOVEMBER 24, 2 015 MOTION TO DISMISS APPEAL FOR LACK OF APPELLATE JURISDICTION
Upon review of (1) Defendant-Appellee University of Hawaii's (Appellee University of Hawaii) November 24, 2015 motion to dismiss appellate court case number CAAP-15-0000711 for lack of appellate jurisdiction, (2) Plaintiff-Appellant Robert E. Wiesenberg's (Appellant Wiesenberg) December 2, 2015 memorandum in opposition to Appellee University of Hawaii's November 24, 2015 motion to dismiss, and (3) the record, it appears that we do not have appellate jurisdiction over Appellant Wiesenberg's appeal from the Honorable Virginia L. Crandall's June 3, 2015 judgment. Although Appellant Wiesenberg purports to appeal from a September 21, 2015 amended judgment, the appealable final judgment in this case is the June 3, 2015 judgment, and Appellant Wiesenberg's September 30, 2015 notice of appeal is untimely under Rule 4 (a) (3) of the Hawai'i Rules of Appellate Procedure (HRAP) as to a directly related July 31, 2015 post-judgment order granting in part and denying in part Appellee University of Hawaii's June 4, 2015 post-judgment motion for attorneys' fees and costs.
Under Hawaii Revised Statutes (HRS) § 641-1(a) (1993 & Supp. 2015), "[a]ppeals shall be allowed in civil matters from all final judgments, orders, or decrees of circuit . . . courts[.]" Appeals under HRS § 641-1 "shall be taken in the manner . . . provided by the rules of court." HRS § 641-1 (c) . HRCP Rule 58 requires that "[e]very judgment shall be set forth on a separate document." The Supreme Court of Hawai'i has held that "[a]n appeal may be taken from circuit court orders resolving claims against parties only after the orders have been reduced to a judgment and the judgment has been entered in favor of and against the appropriate parties pursuant to HRCP [Rule] 58[.]" Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai'i 115, 119, 869 P.2d 1334, 1338 (1994) (emphasis added). "Thus, based on Jenkins and HRCP Rule 58, an order is not appealable, even if it resolves all claims against the parties, until it has been reduced to a separate judgment." Carlisle v. One (1) Boat, 119 Hawai'i 245, 254, 195 P.3d 1177, 1186 (2008). Furthermore, "an appeal from any judgment will be dismissed as premature if the judgment does not, on its face, either resolve all claims against all parties or contain the finding necessary for certification under HRCP [Rule] 54(b)." Jenkins, 76 Hawai'i at 119, 869 P.2d at 1338.
The June 3, 2015 judgment resolved all claims against all parties by entering judgment in favor of Appellee University of Hawaii and against Appellant Wiesenberg on all claims in this case. Therefore, the June 3, 2015 judgment was an immediately appealable final judgment pursuant to HRS § 641-1(a), HRCP Rule 58, and the holding in Jenkins.
Pursuant to HRAP Rule 4(a)(3), Appellee University of Hawaii extended the initial thirty-day time period under HRAP Rule 4(a)(1) for filing a notice of appeal by timely filing its June 4, 2015 HRCP Rule 54(d) (2) (B) motion for attorneys' fees and costs within fourteen days after entry of the June 3, 2015 judgment. HRAP Rule 4(a)(3) "provides that the court has 90 days to dispose of [the] post-judgment [tolling] motion . . ., regardless of when the notice of appeal is filed." Buscher v. Boning, 114 Hawai'i 202, 221, 159 P.3d 814, 833 (2007).
In the instant case, the circuit court triggered the extended thirty-day time period under HRAP Rule 4(a)(3) for any party to file a notice of appeal from the June 3, 2015 judgment by entering the July 31, 2015 post-judgment order granting in part and denying in part Appellee University of Hawaii's June 4, 2015 motion for an award of attorneys' fees and costs. The circuit court's subsequent entry of the September 21, 2015 amended judgment did not postpone the time period under HRAP Rule 4(a)(3) for filing a notice of appeal from the circuit court's adjudication of the substantive issues in this case, because the September 21, 2015 amended judgment merely repeated the substantive adjudication in the June 3, 2015 judgment, and merely added the circuit court's July 31, 2015 award of attorney's fees, as well as a reference to the statutory right to obtain interest on the award at an annual rate of ten percent.
When, as here, a trial court has entered two judgments on the same substantive claims, the following general rule applies:
The general rule is that where a judgment is amended in a material and substantial respect, the time within which an appeal from such determination may be taken begins to run from the date of the amendment, although where the amendment relates only to the correction of a clerical error, it does not affect the time allowed for appeal.
Poe v. Hawai'i Labor Relations Board, 98 Hawai'i 416, 418, 49 P.3d 382, 384 (2002) (citation, internal quotation marks, and ellipsis points omitted; emphasis added); State v. Mainaaupo, 117 Hawai'i 235, 246 n.6, 178 P.3d 1, 12 n.6 (2008).
If the amendment of a final judgment or decree for the purpose of correcting a clerical error either materially alters rights or obligations determined by the prior judgment or decree or creates a right of appeal where one did not exist before, the time for appeal should be measured from the entry of the amended judgment. If, however, the amendment has neither of these results, but instead makes changes in the prior judgment which have no adverse effect upon those rights or obligations or the parties' right to appeal, the entry of the amended judgment will not postpone the time within which an appeal must be taken from the original decree.
Poe v. Hawai'i Labor Relations Board, 98 Hawai'i at 418, 49 P.3d at 384 (citations, internal quotation marks, and original brackets omitted; emphasis added).
With respect to the inclusion of the circuit court's July 31, 2015 award of attorneys' fees in the September 21, 2015 amended judgment, once the circuit court entered the July 31, 2015 post-judgment order awarding attorneys' fees and costs, there was no need for the circuit court to subsequently reduce the award of attorneys' fees to a separate judgment because
the rule in Jenkins[ v. Cades Schutte Fleming & Wright] - to wit, that circuit court orders resolving claims against the parties must generally be reduced to a judgment and the judgment must be entered in favor of or against the appropriate parties pursuant to HRCP Rule 58 before an appeal may be taken - is limited to ...